Can I Use My Trademark While I Wait For It To Be Registered?

If you have a great idea for a brand name, logo, slogan, or design that you want to use to identify your products or services, you might be wondering if you can use it before you register it as a trademark. The answer is yes, you can and you should. In fact, you cannot even get a trademark registration until you use your trademark in commerce. In this blog post, we’ll explain why and how you can use your trademark while you wait for it to be registered.

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If you have a great idea for a brand name, logo, slogan, or design that you want to use to identify your products or services, you might be wondering if you can use it before you register it as a trademark. The answer is yes, you can and you should. In fact, you cannot even get a trademark registration until you use your trademark in commerce. In this blog post, we’ll explain why and how you can use your trademark while you wait for it to be registered.

What is a trademark and why should you register it?

A trademark is any kind of mark that distinguishes your goods or services from those of others. It could be a word, a phrase, a design, or in some cases, even a smell or sound. A trademark helps you build your brand identity, reputation, and customer loyalty. A trademark also protects you from competitors who might try to copy or confuse your customers with similar marks.

Registering your trademark with the United States Patent and Trademark Office (USPTO) gives you several benefits, like:

  • The exclusive right to use your trademark nationwide for the goods or services listed in your registration

  • The ability to sue infringers in federal court and recover damages and attorney fees

  • The presumption of validity and ownership of your trademark

  • The right to use the registered trademark symbol ®

  • The right to record your trademark with the U.S. Customs and Border Protection to prevent the importation of counterfeit goods

  • The right to apply for international trademark protection through the Madrid Protocol

How do you register your trademark?

To register your trademark, you need to file an application with the USPTO and pay the required fees. You can file your application online using the Trademark Electronic Application System (TEAS). You need to provide information such as:

  • Your name and address

  • A description of your goods or services

  • A drawing or specimen of your trademark

  • The date of first use of your trademark in commerce

  • The basis for filing (either use in commerce or intent to use)

Currently, it takes the USPTO approximately nine months before they will examine your application and check if your trademark meets the legal requirements and does not conflict with any existing trademarks. If your application is approved, the USPTO will then publish your trademark in the Official Gazette for opposition. If no one opposes your trademark within 30 days, the USPTO will issue a certificate of registration if you are in use or request proof of use if you filed as intend to use.

How long does it take to register your trademark?

The trademark registration process can take anywhere from 16 months to several years, depending on various factors such as:

  • The complexity of your application

  • The number of applications filed with the USPTO

  • The availability of examiners and attorneys

  • The possibility of office actions, oppositions, or appeals

You can check the status of your application online using the Trademark Status and Document Retrieval (TSDR) system.

Can you use your trademark while you wait for it to be registered?

Yes, you can and you should use your trademark while you wait for it to be registered. In fact, you cannot even get a trademark registration until you use your trademark in commerce. This means that you need to actually sell or provide your goods or services to customers who live outside your state using your trademark.

Using your trademark in commerce has several advantages, such as:

  • Establishing common law rights: Even without a federal registration, you can acquire common law rights by using your trademark in commerce. Common law rights are based on the principle of “first in time, first in right”. This means that whoever uses a trademark first in a geographic area has the right to use it in that area and prevent others from using confusingly similar marks. However, common law rights are limited by the scope and extent of your actual use and may not be recognized in other states or countries.

  • Securing priority date: By using your trademark in commerce, you can secure the priority date of your application. This means that if someone else files a similar trademark after you but before you get registered, you can claim prior rights based on your earlier use. However, this only applies if you file your application within six months of using your trademark in commerce.

  • Building brand awareness: By using your trademark in commerce, you can build brand awareness and recognition among your customers and potential customers. You can also create goodwill and trust with your customers by delivering quality goods or services under your trademark.

How do you use your trademark while you wait for it to be registered?

To use your trademark while you wait for it to be registered, you need to follow some best practices, such as:

  • Conduct a thorough search: Before using your trademark in commerce, you should conduct a thorough search to make sure that it is not already being used by someone else. You can search online databases such as the USPTO’s Trademark Electronic Search System (TESS), state trademark registries, domain name registries, social media platforms, and online marketplaces. You can also hire a professional trademark attorney to conduct a comprehensive search and analysis for you.

  • Use proper symbols: When using your trademark in commerce, you should use proper symbols to indicate your trademark rights and status. You can use the ™ symbol for trademarks or the ℠ symbol for service marks to show that you claim common law rights in your mark. You can use the ® symbol only after you get your trademark registered with the USPTO. You should place the symbols in superscript at the upper right corner of your mark or at the end of a phrase or slogan.

  • Use your trademark consistently: When using your trademark in commerce, you should use it consistently and prominently. You should use the same spelling, capitalization, punctuation, font, color, and style for your mark. You should also avoid using your mark as a noun or a verb, but rather as an adjective followed by a generic term for your goods or services. For example, you should say “Buy XEROX copiers” instead of “Buy XEROX” or “Xerox it”.

  • Monitor and enforce your trademark: When using your trademark in commerce, you should monitor and enforce your trademark rights. You should keep an eye on the market and watch out for any unauthorized or infringing use of your mark or similar marks by others. You should also register your mark with online platforms such as Amazon Brand Registry or eBay VeRO to prevent counterfeit or infringing listings. If you find any infringement, you should take appropriate action such as sending a cease and desist letter, filing a complaint, or initiating a lawsuit.

Conclusion

In this blog post, we explained that you can and should use your trademark while you wait for it to be registered. We also discussed why and how you can use your trademark in commerce to establish and protect your brand identity and reputation.

We hope you found this information helpful and interesting. If you have any questions or comments, please feel free to contact us. And if you liked this blog post, please share it with your friends and followers.